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RES-2016-177PARTICIPATION AGREEMENT This PARTICIPATION AGREEMENT ("Agreement"), made and entered into as of , 2016, by and among the CALIFORNIA MUNICIPAL FINANCE AUTHORITY, a joint powers agency organized and existing under the laws of the State of California (the "AUTHORITY"), [INSERT ADMINISTRATOR], [INSERT TYPE OF ENTITY], ("ADMINISTRATOR") and the City of Anaheim, a municipal corporation organized and existing under the laws of the State of California (the "PARTICIPATING MEMBER"); WITNESSETH: (a) The AUTHORITY is a joint powers agency organized and existing pursuant to the Joint Powers Act, comprising Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title I (commencing with Section 6500) of the Government Code of the State of California; and (b) The AUTHORITY has adopted the Open CMFA PACE Program (the "Program"), for the financing of certain renewable energy, energy and water efficiency improvements, and seismic strengthening improvements, electric vehicle charging infrastructure and such other improvements, infrastructure or other work as may be authorized by law from time to time (the "Improvements") authorized by Chapter 29 of Division 7 of the Streets & Highways Code ("Chapter 29") within the PARTICIPATING MEMBER'S jurisdiction; and (c) The PARTICIPATING MEMBER has authorized the AUTHORITY to form an assessment district (the "District") for Program financing of Improvements on certain properties owned by property owners who voluntarily agree to participate in the Program ("Program Participanf'); and (d) The AUTHORITY intends to issue bonds, notes or other forms of indebtedness (the "Bonds") to finance Improvements within the District; and (e) The PARTICIPATING MEMBER desires to authorize the AUTHORITY to (i) record the assessment against the participating property owner's parcels, (ii) administer the District in accordance with Chapter 29 and the Improvement Act of 1915 (commencing with Section 8500 et seq.) and (iii) prepare program guidelines for the operations of the Program; and The PARTICIPATING MEMBER will permit the ADMINISTRATOR to perform certain management, administrative, operational and implementation functions for the AUTHORITY with respect to the Program. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: Section 1. Recitals. The Recitals contained herein are true and correct and are hereby incorporated herein by reference. Section 2. Appointment of the AUTHORITY. PARTICIPATING MEMBER is not and will not be deemed to be an agent of the AUTHORITY or the ADMINISTRATOR as a result of this Agreement. PARTICIPATING MEMBER consents to the AUTHORITY's assumption of rights, responsibilities, obligations and liabilities related to the Agreement within its jurisdiction upon satisfaction of the conditions imposed pursuant to this Agreement and the resolution authorizing this Agreement, to take each and every step required for or suitable for financing the Improvements, including the levying, collecting and enforcement of the contractual assessments. PARTICIPATING MEMBER consents to the ADMINISTRATOR acting as the third party administrator for the Program in the jurisdiction of the PARTICIPATING MEMBER. In addition, AUTHORITY may add any entity to act as an additional or substitute third -party program administrators (each such substitute or additional administrator, an "Additional Administrator") in the jurisdiction of the PARTICIPATING MEMBER; provided that, the City Manager of the PARTICIPATING MEMBER provides his prior written consent to any such addition or substitution and that entity executes a participation agreement with PARTICIPATING MEMBER and the AUTHORITY. Section 3. Indemnification. The AUTHORITY and the ADMINISTRATOR jointly and severally agree to defend, indemnify, and hold harmless the PARTICIPATING MEMBER, its officers, agents, employees and attorneys from and against any and all liabilities, claims, or demands arising or alleged to arise as a result of the AUTHORITY's or the ADMINISTRATOR's performance or failure to perform under this Agreement or the Program, except that arising from the sole negligence or willful misconduct of PARTICIPATING MEMBER. AUTHORITY further agrees to defend, indemnify, and hold harmless the PARTICIPATING MEMBER, its officers, agents, employees and attorneys from and against any and all liabilities, claims, or demands arising or alleged to arise as a result of the AUTHORITY's or any Additional Administrator's performance or failure to perform under its program administration agreement or with respect to its operation or administration of the Program, irrespective of whether such Additional Administrator has entered into a participation agreement with the City, except that arising from the sole negligence or willful misconduct of PARTICIPATING MEMBER. This Section shall survive termination of this Agreement. Section 4. PARTICIPATING MEMBER has no liability. Except as expressly set forth in this the Agreement or Resolution [INSERT NUMBER], PARTICIPATING MEMBER shall not have any liabilities or obligations or incur any costs or expenses for the Program, including, but 2 not limited to, the repayment of any bonds issued for the Program. PARTICIPATING MEMBER will not have any responsibilities or obligations with respect to the Program, including, but not limited to, the conduct of any assessment proceedings, the levy of assessments, any required remedial action in the case of delinquencies, the issuance, sale or administration of the bonds or other indebtedness issued in connection with the Program. Section 5. Information to be Provided. Within thirty (30) days of each request from PARTICIPATING MEMBER, the AUTHORITY and ADMINISTRATOR agree to provide PARTICIPATING MEMBER with a list of property owners within the City of Anaheim participating in the Prograin as well as their address, detailed description of Improvement(s) installed, and date(s) of Improvement(s) completion. Section 6. Confidentiality. (a) "Confidential Information" means, with respect to a Party hereto, all information or material which either (1) is marked or identified as "Confidential," "Restricted," or "Proprietary Information" or other similar marking or identification, or (2) the other Party knew, as recipient, or under the circumstances, should have known, was considered confidential or proprietary by the Disclosing Party (as defined below). Confidential Information shall consist of all information, whether in written, oral, electronic, or other form, famished in connection with this Agreement by one Party or its Representatives ("Representative" is defined as any elected and appointed officials, affiliate, director, officer, employee, agent, advisor or consultant of a Party or any of its subsidiaries or affiliates) to one or more of the other Parties or to their Representatives, and specifically includes but is not limited to (1) PARTICIPATING MEMBER's individually identifiable customer information, (2) PARTICIPATING MEMBER's customer data and financial data, (3) the AUTHORITY's property owner information disclosing to PATICIPATING MEMBER pursuant to Section 5, and (4) the ADMINISTRATOR's customer data and financial data.. (b) The AUTHORITY, the ADMINISTRATOR and PARTICIPATING MEMBER shall each hold each other's Confidential Information in confidence. No Party shall make the others' Confidential Information available in any form to any third party or use any other's Confidential Information for any purpose other than as specified in this Agreement. The Party providing Confidential Information ("Disclosing Party") to any other Party ("Receiving Party") shall remain the sole owner of such information. Except as provided elsewhere within this Agreement, nothing contained in this Agreement shall be construed as granting or conferring any tight or license in any Confidential Information or in any patents, copyrights, software or other technology, either expressly or by implication to any other Party, or to its Representatives or to others. The term Confidential Information shall not include any of the following: (1) information already in possession of, or already known to, the Receiving Party as of the Effective Date without an obligation of confidentiality; (2) information in the public domain at the time of the disclosure, or which, after such disclosure, enters into the public domain through no breach of this Agreement by the Receiving Party or its Representative(s); (3) information lawfully famished or disclosed to the Receiving Party by a non-party to this Agreement without any obligation of confidentiality and through no breach of this Agreement by the Receiving Party or its Representative(s); (4) information independently developed by the Receiving Party without 3 use of any Confidential Information of the Disclosing Party; or (5) information authorized in writing by the Disclosing Party to be released from the confidentiality obligations herein. (c) By virtue of this Agreement, each Party hereto may disclose to any other Party information that is Confidential Information. This Agreement does not diminish, revoke or supersede any existing confidentiality, non -disclosure or similar agreement between or among any Parties that does not pertain to the subject matter of this Agreement. However, any Confidential Information, whether or not previously disclosed, that pertains to the subject matter of this Agreement shall be governed by the terms of this Section 6 which shall supersede any such previous agreement with respect to such Confidential Information and any Confidential Information relating to the subject matter of this Agreement that was exchanged under such previous agreement shall be treated as though it was exchanged under this Agreement as of the date of such exchange. (d) Each Receiving Party will treat all Confidential Information of the Disclosing Party, no matter written, electronic, or oral, as confidential and proprietary, and such Receiving Party shall only use such information in furtherance of this Agreement. As such, such Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party, and ensure that such Confidential Information is not disclosed to any other person or entity, except as expressly permitted by this Agreement or as authorized by the Disclosing Party. No Receiving Party shall disclose Confidential Information of a Disclosing Party received under this Agreement to any person other than its Representatives who require knowledge of such Confidential Information in furtherance of this Agreement. Each Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information of any Disclosing Party and advise such Representatives of the limitations on the use and disclosure and prohibition on making copies or summaries of such Confidential Information. Each Receiving Party shall be responsible for any breach of this Agreement by its Representatives. No Party shall use the Confidential Information of any other Party for any commercial purpose. (e) If a Receiving Party becomes legally compelled (by the California Public Records Act or other applicable laws, or by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand, or similar process) to disclose any Confidential Information of a Disclosing Party, the Receiving Party will provide the Disclosing Party with written notice of such an occurrence (if so permitted) as soon as possible. Thereafter, at its sole costs and expense, the Disclosing Party may seek a protective order or other appropriate remedy, or waive compliance with the provisions of this Agreement. So long as it is consistent with applicable law, the Receiving Party will not oppose action by, and the Receiving Party will cooperate with, the Disclosing Party, at the Disclosing Party's sole cost and expense, to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information. If the Disclosing Party fails to obtain such protective order or other remedy, or if the Disclosing Party waives compliance with the requirements of the preceding sentence, the Receiving Party will disclose only that Confidential Information that it is legally required to disclose, and will exercise commercially reasonable efforts, at Disclosing Party's expense, to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed. El (f) In the event a Receiving Party discloses, disseminates or releases any Confidential Information, except as expressly permitted by this Agreement, such disclosure, dissemination or release will be deemed a material breach of this Agreement and the Disclosing Party may demand prompt return of all Confidential Information previously provided to the Receiving Party. As soon as the Receiving Party becomes aware that it has made an unauthorized disclosure of Confidential Information, the Receiving Party shall take any and all necessary actions to recover the improperly disclosed Confidential Information and immediately notify the Disclosing Party regarding the nature of the unauthorized disclosure and the corrective measures being taken. Each Party agrees that any breach of their confidentiality obligations could cause irreparable harm to the Disclosing Party, the amount of which would be extremely difficult to estimate. Accordingly, it is understood and agreed that monetary damages would not be a sufficient remedy for any material breach of this Agreement and that specific performance and injunctive relief in addition to monetary damages shall be appropriate remedies for any breach or any threat of such breach. The provisions of this Paragraph are in addition to any other legal rights or remedies a Disclosing Party may have. (g) Notwithstanding any other provision of this Agreement, the provisions of this Section 6 shall not apply to the disclosure of information that must be shared in order to record, levy or collect contractual assessments under the Program or to sell or securitize Bonds. (h) The Authority shall ensure all Additional Administrators are bound by the provisions of this Confidentiality Section. 0) Notwithstanding the termination of this Agreement, this Confidentiality Section shall survive the expiration or earlier termination of this Agreement. Section 7. Integration. This Agreement is subject to the terms of Resolution [INSERT]. This Agreement contains the entire agreement of PARTICIPATING MEMBER, the ADMINISTRATOR, and the AUTHORITY with respect to the matters covered hereby, and no agreement, statement or promise made by PARTICIPATING MEMBER, the ADMINISTRATOR, and the AUTHORITY which is not contained herein, shall be valid or binding. No prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose. Section 8. Termination. This Agreement may be terminated by either the AUTHORITY or PARTICIPATING MEMBER with thirty (30) days written notice. In the event of such termination, the AUTHORITY, the ADMINISTRATOR, or any Additional Administrator shall no longer have the rights and authorizations granted in this Agreement and Resolution [INSERT], including but not limited to, conducting of additional contractual assessment proceedings and levying new contractual assessments, except to the extent the AUTHORITY may have such rights and authorizations under a separate participation agreement. Section 9. No Endorsements. The AUTHORITY and ADMINISTRATOR shall not represent to any person or entity that PARTICIPATING MEMBER endorses or is a Program affiliate of the AUTHORITY or ADMINISTRATOR. In connection therewith and without limiting the foregoing prohibition, the AUTHORITY and ADMINISTRATOR shall not use any 5 logo or other representation of the PARTICIPATING MEMBER. The Authority shall ensure all Additional Administrators are bound by the provisions of this Section. Section 10. Effective Date. This Agreement shall be effective on the date on which this Agreement is executed by the PARTICIPATING MEMBER ("Effective Date"). IN WITNESS WHEREOF, the parties hereto have executed this Participation Agreement by their officers duly authorized as of the day and year first written above. CALIFORNIA MUNICIPAL FINANCE AUTHORITY By: [INSERT] [INSERT ADMINISTRATOR] By: CITY OF ANAHEIM, a municipal corporation By: City Manager ATTEST By: Linda N. Andal, City Clerk APPROVED AS TO FORM: ANAHEIM CITY ATTORNEY ME Daniel A. Ballin, Deputy City Attorney 109595 0